DMH 21 David Hewitt
THE DRAFT MENTAL HEALTH
BILL
A SUBMISSION
TO THE
PARLIAMENTARY JOINT COMMITTEE
DAVID HEWITT
NOTE
David Hewitt
is a solicitor, and a partner in Hempsons, where he specialises
in mental health law (and in particular, in the impact of the
ECHR on the Mental Health Act).
For the last five years, David has represented
NHS bodies and health care practitioners. However, for 13 years
prior to that he represented mental health patients and their
families.
Since 1995, he has been a member of the Mental
Health Act Commission. He is also on the editorial board of the
Journal of Mental Health.
This submission is made in a personal capacity.
1. Is the Draft Mental Health Bill rooted
in a set of unambiguous principles? Are these principles appropriate
and desirable?
1.1 The Draft Mental Health Bill seems to
be motivated by two distinct, even contradictory, desires: to
create new rights while also addressing the perception that the
public believes itself to be at risk.
1.2 The Government has not given a proper
explanation of why a new Mental Health Act is necessary. Even
before the new Draft Mental Health Bill, the Green Paper, the
White Paper and the 2002 Draft Bill suggested six motivating factors:
(a) There is a need to up-date the principles
upon which mental health law is based. The elimination of
the Approved Social Worker ('ASW') will undermine one of the key
principles of the Mental Health Act 1983 ('MHA 1983'): balancing
the 'medical' and the 'social' models of mental illness.
(b) MHA 1983 no longer reflects the way
mental health services are delivered. If more patients are
cared for in the community, that may be because there are too
few beds for them. The Government has failed to explain why this
reason makes it necessary to make the changes it has proposed.
(c) MHA 1983 has failed to protect patients
and the public. This reason is at the heart of the proposals.
However, although it has asserted as much, the Government has
not explained how the lack of a broad definition of 'mental
disorder', for example, or the presence of the 'treatability test'
have placed the public in danger. In fact, most of the (many)
inquiries of recent years suggest that there are other reasons
for patient suicides and homicides, reasons that the Draft Mental
Health Bill does not address.
(d) Professionals have an inadequate knowledge
of mental health legislation. Why does it require a new
Mental Health Act to cure this deficiency? Wouldn't the answer
be to provide more and better training on the existing Act? The
one group of professionals that does receive specialist
training in mental health - ASWs - will see its role weakened
under the next MHA.
(e) MHA 1983 has a too narrow conception
of 'treatability'. See below.
(f) The introduction of the Human Rights
Act 1998 has created new obligations. There is nothing in
the ECHR to require all decisions to apply compulsion to
be taken by an independent judicial body. Nor would the ECHR
appear to require a broader definition of 'mental disorder' or
'relevant conditions' that are themselves broad and abolish the
'treatability test'.
1.3 The Government need not introduce a new
Act; it could make all the truly necessary changes by amending
MHA 1983. It did so before, when it introduced Supervised Discharge
and reversed the burden of proof in MHRT proceedings.
2. Is the definition of Mental Disorder
appropriate and unambiguous? Are the conditions for treatment
and care under compulsion sufficiently stringent? Are the provisions
for assessment and treatment in the community adequate and sufficient?
2.1 The definition is unquestionably broader
than the one in MHA 1983. It does seem wide enough to
cover epileptics and drunks. It might also cover those who have
sustained traumatic damage to a fully developed brain (who are
not caught by the current Act).
2.2 The Government believes psychopaths are
escaping detention because they can't be treated. It is wrong.
If MHA 1983 is correctly applied, there are few circumstances
in which those suffering from mental disorder (as currently defined)
cannot be 'treated':
(a) The current definition of 'treatment'
is very wide, and it is preserved in the Draft Bill.
(b) The definition has been widened by the
courts, so that now, its purpose "may extend from cure to
containment".
(c) These widenings have been sanctioned by
the European Court of Human Rights.
2.3 Third Condition: Due to a shortage
of resources, compulsory treatment has long been confined to those
who suffer from serious and enduring mental illness, which they
often manifest by harming or neglecting themselves or endangering
others. Now and for the first time, compulsion will be confined
to such people as a matter of law.
2.5 Fourth Condition: this says that
a patient will be subject to the fewest restrictions consistent
with his/her needs. However, it won't apply in the case of an
adult "who is at substantial risk of causing serious harm
to other persons." This exception is justified neither
by fact or experience, nor by the Government's own rationale.
2.6 The Fourth Condition and the proposal
for 'non-resident' compulsion could be seen as examples of the
'least restrictive alternative' principle. This is how the Government
would like them to be seen. In its over-view document it says:
"The intention of allowing patients to be under formal powers
in the community is to provide greater flexibility to practitioners
so that the principle of least restriction can be put into effect".
However, in the White Paper, the Government noted that under
MHA 1983, "powers to require compliance with treatment are
linked to detention in hospital". This, it said,
"does not […] support the processes
of individual care planning that are needed to ensure that compulsory
treatment will result in good health outcomes for patients and
reduced risk. At the moment clinicians have to wait until
patients in the community become ill enough to need admission
to hospital before compulsory treatment can be given. This prevents
early intervention to reduce risk to both patients and the
public".
The Government could be accused - not, perhaps,
for the first time - of trying to appeal to two different, even
antipathetic, constituencies.
3. Does the Draft Bill achieve the right
balance between protecting the personal and human rights of the
mentally ill on one hand, and concerns for public and personal
safety on the other?
3.1 The definition of 'carer' may not be sufficiently
precise to avoid confusion or argument.
3.2 Even when selected without controversy,
a patient's carer might come into conflict with his/her Nominated
Person ('NP'). There would appear to be nothing in the Draft
Bill to indicate how any such conflict is to be resolved.
3.3 The Draft Bill purports to compel the
sharing of information about patients who are subject to compulsion.
However, it provides no new powers - or protections - in that
regard and (particularly in the case of the police) may raise
expectations it cannot fulfil.
4. Are the proposals contained in the
Draft Mental Health Bill necessary, workable, efficient, and clear?
Are there any important omissions in the Bill?
4.1 The Draft Bill of 2002 contained detailed
and robust safeguards for compliant, incapable patients who were
not subject to compulsory powers. Those safeguards have been
omitted from the 2004 Draft Bill. The Government says this is
because they have been shifted to the Mental Capacity Bill, but
that is not so: the Mental Capacity Bill does not provide for
the appointment of a NP for such patients, nor does it give them
the right to a care plan or to apply to a tribunal.
4.2 Following HL v United Kingdom,
this deficiency must be addressed. The common law does not provide
a lawful basis upon which incapable patients can be admitted to
hospital. In fact, the safeguards that the European Court of
Human Rights ('ECtHR') held to be necessary to comply with ECHR,
Article 5 - and which it found to be lacking in the common law
- resemble those set out in the 2002 Draft Bill.
6. Are the safeguards against abuse adequate?
Are the safeguards in respect of particularly vulnerable groups,
for example children, sufficient? Are there enough safeguards
against misuse of aggressive procedures such as ECT and psychosurgery?
6.1 The proposals concerning ECT beg at least
two significant questions:
(a) Is the requirement for consent (in the
case of a capable patient) motivated by concern over the efficacy
or effects of ECT? If so, is it appropriate that ECT may be administered
to in-capable patients without their consent? Is it appropriate
for ECT to be administered at all?
(b) Why are capable patients fit to refuse
ECT but not anti-psychotic medication?
7. Is the balance struck between what
has been included on the fact of the draft bill, and what goes
into Regulations and the Code of Practices [sic]
right?
7.1 It is unfortunate that so much has been
left to documents that have not yet been published. For example:
(a) It is not possible to comment conclusively
upon proposals for the appointment of the NP without knowing whom
the relevant regulations will 'disqualify' and why.
(b) There are several areas of mental health
practice in which staff are in need of clear, comprehensive guidance.
One of those areas is seclusion. However, there is no indication
that such guidance will be provided in the Code of Practice.
9. Is the Draft Mental Health Bill in
full compliance with the Human Rights Act?
9.1 The ECtHR has declined to give a definitive
interpretation of what it means to be of "unsound mind".
Nevertheless, it should not be assumed that every use of compulsion
on a person who is thought to meet the new, broad definition of
'mental disorder' will comply with ECHR, Article 5(1)(e).
9.2 The Draft Bill would diminish the force
of the Code of Practice. It provides that the Code may be dis-applied
in certain circumstances or in the case of certain patients, and
that hospitals and practitioners need only "have regard"
to it. This represents a very different view of the status of
the Code than the one put forward by the Court of Appeal in the
Munjaz case. The Court held that the Code must be respected
unless there was "good reason" for departing from it.
The Code must have such force, the Court decided, so that the
interventions it covered could be said to be "prescribed
by law" and so comply with ECHR, Article 8. If the Code
is stripped of such force, there is, once again, the prospect
of challenge under the HRA 1998 (and not just in respect of the
practice of seclusion).
9.3 At first sight, the proposals for the
appointment of the NP seem sensible. However, a patient's choice
of NP may be disregarded by the AMHP if the person chosen is 'unsuitable'.
The Draft Bill does not suggest that this loaded word will be
explained, or that guidance as to 'unsuitability' will be given,
in rules, regulations or the Code of Practice. It gives the AMHP
far too great a discretion; so much, in fact, that there might
be a breach of undertakings the Government gave to the ECtHR.
David Hewitt
11 October 2004
Department of Health, Reform of the Mental
Health Act 1983: Proposals for Consultation, November 1999,
Cm 4480
Department of Health and Home Office, Reforming
the Mental Health Act - Part I: The new legal framework, December
2000, Cm 5016-I; Department of Health and Home Office, Reforming
the Mental Health Act - Part II: High risk patients, December
2000, Cm 5016-II
Department of Health, Draft Mental Health Bill,
June 2002, Cm 5538-I; Department of Health, Draft Mental Health
Bill: Explanatory Notes, June 2002, Cm 5538-II; Department
of Health, Draft Mental Health Bill: Consultation Document,
June 2002, Cm 5538-III
Green Paper, para 1.3
Green Paper, paras 2.5-2.7; White Paper, para 2.6
and Executive Summary, para 4
White Paper, Foreword, Executive Summary,
para 2, and paras 1.14 & 1.15, 2.6, and 2.13 & 2.14
Green Paper, para 2.8; White Paper, paras 1.14 and
2.6
See para 2.2, below
White Paper, paras 2.9, 3.8 and 5.1, and Executive
Summary, para 7; Draft Mental Health Bill 2002, Consultation
Document, para 2.2, Annex, and Partial Regulatory Impact
Assessment, Option 1, number 1
Mental Health (Patients in the Community) Act 1995,
c 52
Mental Health Act 1983 (Remedial) Order, SI 2001
No 3712
White Paper, paras 1.15, 3.3 & 3.5, and Executive
Summary, para 2; Draft Mental Health Bill 2002, cl 2(6), and
Consultation Document, para 2.11 and Annex
David Hewitt, Treatability Tests, Solicitors
Journal, 4 October 2002, pp 886 & 887
MHA 1983, s 145(1)
cl 2(7)
R v Canons Park Mental Health Review Tribunal,
ex parte A [1994] All ER 659, CA; R v Secretary of State
for Scotland 1998 SC 49, 2 Div
Reid v Secretary of State for Scotland [1999]
1 All ER 481
Reid v United Kingdom, Application No 00050272/99,
Judgment, 20 February 2003
cl 9(7)
See, for example: MHA 1983, s 3(2)(c); Department
of Health, MHA 1983 Code of Practice, March 1999, para
1.1
Department of Health, Improving Mental Health
Law, September 2004, para 3.35
2000, Cm 5016-I, para 2.14; emphasis added
Draft Bill (2002), Part 5
Draft Bill (2002), cl 127
Draft Bill (2002), cl 129-134
Draft Bill (2002), cl 136
Application no 45508/99, Judgment of 5 March
2004
Ibid, para 120
Draft Bill, cl 232(4)(a)
Winterwerp v The Netherlands (1979) 2 EHRR
387
cl 1(4)
cl 1(6)
cl 1(2)
R (Munjaz) v Mersey Care NHS Trust; R (S) v Airedale
NHS Trust [2003] EWCA Civ 1036
cl 232(5)
JT v United Kingdom [2000] 1 FLR 909; FC
v United Kingdom (1999) App No 37344/97
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